미국 Foreign Corrupt Practices Act에 관한 연구

The recent active and aggressive enforcement of the Foreign Corrupt Practices Act (“FCPA”) by the U.S. Department of Justice and the Securities Exchange Commissioner has drawn substantial attention. Although FCPA has been promulgated in 1977 it had received little attention until recently. In recent years, the number of FCPA cases has increased dramatically and the amounts of the imposed fines have soared exponentially. Furthermore, as many of the target companies were non-U.S. companies, new light is being shed on the FCPA worldwide and the business community is increasingly paying sharp attention to the current trend. Korean companies also are not immune to the FCPA. Therefore, it is imperative to study the FCPA and such study will bring practical benefit that surpasses comparative legal research. This Article first provides an overview of the first and second amendments to the FCPA. The FCPA, which was first enacted in 1977 in response to the Watergate Scandal and led to the signing and ratification of the OECD Convention on combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Convention”), has had significant impact on other countries. The process of change has laid the groundwork for aggressive enforcement by broadening and expanding the FCPA’s jurisdictional reach and the scope of persons and entities falling its purview. That is, the recent change in enforcement, without any amendment to the statute since 1998, has brought differences in the law itself, which further caused groundbreaking changes in the overall business world. This Article, based on recent papers, data and other materials, discusses, among other things, the number of FCPA cases, amounts of fines levied, and foreign companies investigated for FCPA violation. The anti-bribery and accounting provisions will be explained next. Based on the definition of “Covered Person” used in the anti-bribery provisions, this Article addresses the concepts of issuer, domestic concern and foreign nonresident. Especially, the jurisdictional reach and personal jurisdiction of each group of Covered Person will be explained in detail. Introduction of other elements of the anti-bribery provisions will follow, together with a more in-depth explanation of issues that have been controversial in the U.S., such as indirect bribery using intermediaries and the scope of government agencies (e.g., state owned entities) covered under the FCPA. The exceptions and affirmative defenses will be discussed as well, including the current trend of limiting the scope of these exceptions and defenses and comparison with the OECD Convention. This Article also explains the accounting provisions in detail. Although the accounting provisions are not as well‐known as the anti-bribery provisions, they are much more stringent and have more far‐reaching implications for punishment than the anti-bribery provisions. In particular, the duty to maintain accurate books and records, proper internal control system and the standard required are explained. This Article sets out comparative analysis between Korean law and the FCPA. Among other things, Korean law does not contain accounting provisions. In addition, this Article compares the two countries’ laws in terms of the scope of covered persons and foreign public officials, and exceptions and affirmative defenses. Comparative analysis would serve as a helpful reference point in the interpretation or amendment of the relevant Korean law. Finally, the Article emphasizes the importance of accurately understanding the FCPA. Despite criticism in the U.S. about aggressive enforcement of the FCPA, there is still a possibility that a Korean company or person would become the target of FCPA investigation. As such, it is crucial to have accurate knowledge about the FCPA. Moreover, in light of the fact that funds and business activities nowadays cross borders so frequently, the worldwide trend to jointly combat bribery will continue to increase. Therefore, this Article ends with an emphasis on the need to be prepared.